Appeal of Parker
| Decision Date | 22 June 1938 |
| Docket Number | 677. |
| Citation | 197 S.E. 706,214 N.C. 51 |
| Parties | Appeal of PARKER. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; E. C. Bivens, Judge.
Proceeding in the matter of the appeal of Dr. H. R. Parker, petitioner from an order of the City Building Inspector of Greensboro requiring petitioner to remove a wall which allegedly violated a zoning ordinance relating to fences and walls in residential districts. Judgment directing petitioner to tear down the offending wall, and petitioner appeals.
Affirmed.
The City of Greensboro has adopted a zoning ordinance which is now in force, the pertinent provisions of which are as follows:
The petitioner, who is the owner of a corner lot at the intersection of South College Park Drive and Mayflower Drive in said city, began the erection of a line fence or wall, the height of which exceeded the limitations set in said ordinance. After the wall had been completed except for stuccoing thereof, the City Building Inspector issued his order to Dr. Parker, calling attention to the fact that said wall violated Section 17 (f) of the zoning ordinance and directing him to remove the violation within seven days. The petitioner appealed to the Board of Adjustment. On the hearing of said appeal by the Board of Adjustment the order of the Building Inspector was affirmed. On application of the petitioner a writ of certiorari was issued and on the return thereof the cause was duly heard.
The court below found the facts, including the following:
"5. The petitioner Dr. H. R. Parker is the owner of a lot located in a residence A district of the City of Greensboro as such a district is defined in the zoning ordinance. The lot is situated at the southeast corner of the intersection of South College Park Drive and Mayflower Drive. It fronts about 62 feet on South College Park Drive and extends southwardly some 150 to 160 feet along Mayflower Drive to a private alleyway which runs in an eastwardly direction from Mayflower Drive. Certain other lots south of the petitioner's lot and south of the alley front on Mayflower Drive. On the petitioner's lot is situated a dwelling house in which the petitioner and his wife reside.
6. The petitioner's lot is considerably above the level of the abutting streets, the highest part of the lot being approximately 21.6 feet above the level of South College Park Drive and approximately 15.1 feet above the level of Mayflower Drive. The lot slopes from the highest part thereof toward South College Park Drive on the north and toward Mayflower Drive on the west.
7. Between October 5, 1937, and October 12, 1937, the petitioner built a wall around the rear of his lot.
8. The wall is a solid brick wall, eight inches thick, except that it is 21 inches thick at the base. The height of the wall is as follows:
a. The portion of the wall which connects the house with the east wall: approximately seven feet above the natural level.
b. The east wall: approximately 6.5 feet above the natural level.
c. The south, or rear, wall: approximately 6.5 feet above the level at the southeast corner of the lot, increasing along approximately a 2.64 per cent grade, to nine feet above the natural level at the southwest corner of the lot.
d. The west wall: 14.3 feet above the sidewalk at the southwest corner of the lot, increasing along approximately a 8.3 per cent grade to 16.9 feet above the sidewalk at the northwest corner of the wall.
e. The portion of the wall which connects the house with the west wall: 16.9 feet above the sidewalk at the northwest corner, decreasing to 9.5 feet above the natural level at the point of junction with the house.
Along the sides of the lot the wall extends from the rear of the lot approximately 30 feet toward the front of the lot and then on each side turns toward and joins the house near the rear thereof.
9. That the wall described in finding of fact No. 8 of this judgment is contrary to and in violation of the city ordinances of the City of Greensboro as set out in paragraph two hereof."
The court thereupon adjudged that said ordinances are valid and that said wall upon the premises of the petitioner is in direct violation of the same; and ordered the petitioner to tear down said wall or make it comply with the ordinances above set out. The petitioner excepted and appealed.
Moseley & Holt, of Greensboro, for appellant.
Hoyle & Hoyle, H. C. Wilson, and Stern & Stern, all of Greensboro, for appellee.
The petitioner's exception No. 2 is directed to the alleged error of the court in finding that Harry Sabel, one of the protestants, acquired title to the property abutting thereon and occupied by the petitioner subsequent to the passage of the ordinances hereinbefore referred to and before the erection of the wall hereinbefore described and that various other property owners in the immediate vicinity purchased said properties both prior and subsequent to the passage of said ordinances. This finding of fact is immaterial and has no substantial bearing upon the merits of this controversy. Exception thereto is not of sufficient merit to warrant a disturbance of the judgment below.
Petitioner's third exception is to the signing of the judgment set out in the record. The facts found by the court below are fully sufficient to sustain the judgment. The judgment was in accordance with the facts found, to which no exception was entered, and must be sustained, unless there is merit in the petitioner's only other exception.
This brings us to petitioner's exception No. 1, which is the meat of the controversy and presents the contention upon which the petitioner must and does rely. This exception is to the refusal of the court below to make the following finding, to-wit:
It appears from this exception that the petitioner does not challenge the constitutionality of the zoning ordinances of the City of Greensboro as a whole. The validity of comprehensive zoning ordinances has been recognized by the Supreme Court of the United States and held not violative of the provisions of the Federal Constitution. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016; Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 448, 72 L.Ed. 842; Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074.
Zoning ordinances adopted under authority of our statute, C.S.Supp.1924, § 2776 (r), have been recognized and enforced by this court. Harden v. Raleigh, 192 N.C. 395, 135 S.E. 151; Little v. Raleigh, 195 N.C. 793, 143 S.E. 827; Elizabeth City v. Aydlett, 201 N.C. 602, 161 S.E. 78; In re Broughton's Estate, 210 N.C. 62, 185 S.E. 434.
The courts will not invalidate zoning ordinances duly adopted by a municipality unless it clearly appears that in the adoption of such ordinances the action of the city officials "has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense." Nectow v. Cambridge, supra; Euclid v. Ambler Realty Co., supra.
When the most that can be said against such ordinances is that whether it was an unreasonable, arbitrary or unequal exercise of power is fairly debatable, the courts will not interfere. In such circumstances the settled rule seems to be that the court will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining whether its action is in the interest of the public health, safety, morals or general welfare. Euclid v. Ambler Realty Co., supra; Radice v New York, 264 U.S. 292, 44 S.Ct. 325, 68 L.Ed. 690; Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348, Ann.Cas.1917B, 927; Thos. Cusack Co. v. Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472, L.R.A.1918A, 136, Ann.Cas.1917C, 594; Rast v. Van Deman & L. Co., 240 U.S. 342, 36 S.Ct. 370, 60 L.Ed. 679, L.R.A.1917A, 421, Ann.Cas.1917B, 455; Price v. Illinois, 238 U.S. 446, 35 S.Ct. 892, 59 L.Ed. 1400; Zahn v. Board of Public Works, supra. Harden v. Raleigh, supra, in which the court quotes with approval from Rosenthal v. Goldsboro, 149 N.C. 128, 62 S.E. 905, 20 L.R.A.,N.S., 809, 16 Ann.Cas. 639, as follows (135 S.E. p. 153): ...
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